Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, March 06, 2016

Americans (and I use the term quite broadly) have cultivated a
somewhat sophisticated love-hate relationship with ideology. Americans
tend to use it as a pejorative, as a system of thinking about things
that may be artificial, or better put, brittle. It is rarely a match for
the more profound normative systems offered by natural law, or
religion, or those ancient systems of ethics and morals that produce our
laws, norms, social and economic structures. These are natural--in
their the scientific or religious sense--and thus more robust than
"mere" ideology, now understood as a self conscious construct. They are
not constructs of the devious mind seeking to build systems the way Dr.
Frankenstein built his monster. In a sense, there is an undercurrent in
thinking about ideology that would see in it an exercise in an
inversion of failure--ideology produces facts from truth.

There
is a little of that in much American engagement with (mere) ideology.
And that ideological substructure (if I am permitted a little word play
here) is all too apparent when Americans tend to view the normative
structures of Chinese societal or political organization. The
cultivation of this perspective is important and may be deeply
culturally embedded, especially within our intellectual classes. But it
does serve to provide a necessary orientation when Americans engage in
the project of comparison, generally, but especially of assessment, of
systems that are quite formally distinct. To consider an ideology--say
Chinese ideology--is to consider the instrumental political platforms of
factions playing out against a broader, and implicitly more legitimate,
normative system which is either ignored, resisted or masked by the
ideological games of elites, whose legitimacy is weakened thereby.

Professor Taisu Zhang argues that scholars have neglected the importance (and current rise) of ideological factors in their analyses of China. While in the early 2000s, “the notion that Chinese elites no longer believed in Communism was still a novel one,” today anyone “who insists that Communist ideals still hold sway over Chinese policymaking does so at considerable risk to his or her reputation as a serious China hand.” Professor Zhang maintains that while “the signs of an ideological revival are everywhere,” the impossibility to acknowledge their importance means that their “policy implications have gone largely understudied, if not outright dismissed as insignificant”. This means that there is no incentive for China scholars to acknowledge the importance of ideology because the field looks at it with disdain. Also, while being studied for itself as rhetoric, the implications of ideology on policymaking are understudied. This argument (or way of looking at policy) presupposes that it is possible to decouple ideology from pragmatism (or practice/ policy) in the case of China.

This comment is structured as follows: first, I will dispute this distinction. Second, I will quickly look at Deng, Jiang and Xi, and highlight the mutual dependency of ideology and practice. Second, based on this understanding the distinction between action and reaction is rendered superfluous. Indeed, while I agree with Professor Zhang’s argument that ideology plays an important role and has to be considered, I go further, arguing that ideology matters to an even greater extent.

The relationship between ideology and pragmatism is what Li Zehou described as “practical” and “experiential” rationality (实用 and 经验理性). Meaning is generated through a utopian wish and through the dialectic of practice and theory whereby practice is and remains dominant. This leads to the problem of how can Chinese “pragmatism” reconcile a utopian wish with a belief in the predominance of practice? The concepts of “practical rationality” (实用理性) or “experiential rationality” (经验理性) are the unifying principle behind the instrumental use of Western terminology. What connects practical and experiential rationality to pragmatism (实用主义) is their focus on an objective and scientific understanding of the reality based on experience. The main difference is in how practical rationality and pragmatism are connected to history. Pragmatism is usually directed towards a specific point, for example a problem or an issue. Li Zehou points out that practical rationality is different insofar as there is an overarching narrative connecting the different ends, the dao (道).[i] Practical rationality is both long- and short-term oriented as well as highly invasive and encompassing since it unites the different means under a long-term arc. Similarly, Yu Yingshi argues that in Confucian thought the dao comes from history.[ii] Traditionally in China, reality and dao were connected. This connection between the utopian and the practical that practical rationality establishes cannot be underestimated, for the form and meaning (for example of concepts) can be fluid but do not have to be.

Though to different degrees, ideology and pragmatism have always been mixed in China. Even if ideology took a backseat during the Deng and Jiang periods (which I find increasingly debatable), it has always been alive and well. The discussion surrounding the principle of truth that followed Mao Zedong’s death was symptomatic for the theoretical basis that was established for fitting the reform and opening policies into the framework and discourse of socialist ideology. These series of discussions laid down the basis for both Deng Xiaoping theory and the future of the CCP, culminating in the 3rd Plenary Session of the 11th Central Committee of the CCP in December 1978 during which the criterion of truth was established.[iii] One of the results was Deng’s theory of “Poverty is not socialism” that was elaborated in 1980. Deng maintained that the nature of socialism is to eradicate poverty. To reach this aim, living standards of the people had to be raised and productive capacities developed. Also, the State Constitution of 1982 was a direct result of the mayhem ideological aberrations heaped upon China during the Cultural Revolution. To that extent, the Chinese State Constitution cannot properly be understood without understanding it as a reaction. Deng’s “seeking truth from facts” (实事求是) also was ideologically hinged to Mao’s early writings, for example “Reform our study,” “On Practice,” or “On Contradiction”. Under Jiang Zemin, the importance of ideology did not change much. The “Three Represents” theory that found entry into the Party and State Constitutions is based on the idea that socialist ideology must bend to the requirements of a continuous practice. Hence, prevailing practices found their way into the CCP’s policies and were enshrined on the national level and within state laws.

Ideology and (pragmatic) policies cannot and indeed should not be seen separately from each other. Even if ideology (or pragmatism) sometimes does not seem to matter, it still continues to linger in the background both shaping and guiding thinking. Hence, Professor Zhang’s conclusion that the pragmatism of Chinese politics “will soon die out” is a misunderstanding of the mutual dependence of pragmatism and ideology as well as a misconstruction of their balance. Socialist ideology is important to the extent that it represents a mirror against which policies have to be understood: it is both active and reactive because ideology both influences policies through the limitation of possible discourse and reacts to mirror their changes. It supplies the aims (e.g. xiaokang society) and the overall arc to which all policies must adhere. In that sense all policies, directives and regulations are implicitly bound to be ideological, while rendering the Party Constitution the fundamental basis with which policies have to be coherent. When Xi Jinping now urges the establishment of grassroots Party organizations,[iv] Li Keqiang in his Government Work Report of 2016 sets China’s GDP growth rate aim at 6.5-7%,[v] or Wang Qishan urges the strengthening of intra-Party rules supervision,[vi] then these measures are both ideological and pragmatic. Set within the ideological framework of the “Four Comprehensives,” they are the means to reach the proclaimed aim of a xiaokang society until 2021 (as written down in the Party Constitution). Thus, the ideological revival under Xi Jinping is not a “revival” in a stricter sense. Ideology and pragmatism in all areas are greatly intertwined and have always been (though again, to a varying degree).

This leads me to the second point Professor Zhang mentions: he writes that one could “argue that the party has played a reactive role, rather than a proactive one” and that “compared to the depth and momentum of these currents, the party may simply be trying to catch up”. While Professor Zhang refers to the specific revival of “figures such as Mao and Confucius,” and the rise of the “New Left” and “Neo-Confucianism,” it is indeed difficult to disconnect action from reaction. To what extent is the Party reacting or acting? Both a focus on action or reaction implies a divorce between the state (Party) and the society; hence ideally, they should be the same.

In terms of policy, Heilmann described how the Party relies on the transformation of (local) practices into national policies.[vii] Apart from Heilmann’s own examples, a recent case that caused ripples in the Western media were the “Online Publishing Service Management Rules,”[viii] which however just formalized existing practice into rules.[ix] As Bandurski notes on the Cyber security policy, the first police offices in tech companies were established in 2010, five years before the actual policy was stipulated.[x] Also, Xi Jinping’s 2014 speech[xi] on how the arts and literature were to serve politics was a summary of measures that had already been in place.[xii] Increasingly, these experiments are both rooted in the growing fragmentation of Chinese society, a phenomenon Lieberthal described in the early 90s[xiii] that was later termed “Fragmented Authoritarianism 2.0” by Mertha, who focuses on the myriad of actors that have penetrated the policy-making process and exert influence.[xiv] Wang Shaoguang reconciles Heilmann’s experimental facet of policy-making with an increasingly fragmented society that involves a myriad of influence groups.[xv] Of his seven facets, five to seven include: (5), post-1980, the drivers [of learning] included the supporters of different policies, such as local governments, international organizations, institutions of education, and government departments. This has led to a steady increase of their influence; (6), from crude and rather uncoordinated grassroots practices [pre-1980], the learning experience has become systematic; (7), even though old conflicts of interest were solved, new conflicts will inevitably arise, rendering the process of learning and adaptation infinite.

The transformation of the practices into national laws is symptomatic for a duality of action and reaction determined by the society’s growing complexity. A greater understanding of “facts on the ground” must precede the increase of responsiveness. How to increase the ability to respond to popular demand without losing the legitimacy for action? The answer can be: higher penetration of Party structures vertically (happening) and horizontally through the channeling of feedback through proper channels (happening), greater unity with the CCP Central Committee (happening), the formation of a grand narrative (happening), and the depersonalization of social relationships through laws (happening).

However, these measures have to be seen and understood through the prism of practical rationality, demanding that we analyze them through the framework of Party action (and reaction): the Party Constitution and its proclaimed aim to establish a xiaokang society by 2021. It is thus that CCP and state regulations and policies lag behind reality, and not just within the subject of ideology, as Professor Zhang notes. The formalization of practice within Party policies, regulations and laws is thus both necessarily proactive and reactive. Here, we are no longer in the realm of ideology proper, but have to understand ideology holistically as a way to make sense of the Party’s role as a vehicle.

To conclude, it is necessary to draw more attention to: (1) the experimental style of policy-making within the frame of an increasingly complex society. This implies an empirical view of CCP policy. (2) An in-depth understanding of the Party Constitution since it sets the frame for all possible (Party and state) policies. (3) The interaction between (1) and (2): seeing the trees for the trees they are while simultaneously putting them in relation to the forest they constitute. With the forest changing, the number, size, and variants of trees change. With this mutual influence in mind, both the forest and its trees deserve to be reexamined.

Lieberthal, Kenneth G. 1992. "Introduction: The "Fragmented Authoritarianism" Model and Its Limitations." In Bureaucracy, Politics, and Decision Making in Post-Mao China, edited by Kenneth G. Lieberthal and David M. Lampton. Berkely: University of California Press.

[xiv] (Mertha 2009) See also (Florini, Lai, and Tan 2012) Florini et al. however see experimentation as a response to the democratic pressures the authoritarian CCP faces, rather than a feature of the Chinese socialist system.

[xv] (Wang 2008) See also (Zheng 2013, Wu and Wen 2012) Also, Shi Tianjian argued that village committee elections were based on incremental experimental reform. See (Shi 1999)

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.